Citation Nr: 0941541
Decision Date: 11/02/09 Archive Date: 11/09/09
DOCKET NO. 06-31 524 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for a right leg
disorder, to include as secondary to service-connected
gunshot wound above the left knee, to include knee
involvement, fractured femur and superficial scar, left lower
extremity above the knee (Muscle Group VIII).
2. Entitlement to service connection for degenerative
changes of the back, claimed as a back condition, to include
as secondary to service-connected gunshot wound above the
left knee, to include knee involvement, fractured femur and
superficial scar, left lower extremity above the knee (Muscle
Group VIII).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel S. Lee, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1943 through
April 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Columbia, South Carolina.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In an April 2006 Notice of Disagreement, the Veteran
contended that current disorders in his back and right leg
were caused by limping and favoring of his service-connected
left leg for "all these years."
In the August 2006 VA examination report, the examiner
provided diagnoses of degenerative joint disease of the
lumbar spine with radiculopathy giving rise to right lower
extremity pain, as well as a peripheral neuropathy with the
major contribution likely from a Vitamin B-12 deficiency and
lesser contribution from diabetes mellitus. Regarding the
diagnosed right leg radiculopathy, the examiner concluded it
was less likely than not secondary to the Veteran's service-
connected left knee gunshot wound, and instead was caused by
the Veteran's lumbar spine degenerative disk disease. With
regard to the Veteran's degenerative disk disease of the
lumbar spine, the examiner concluded that it was less likely
than not secondary to the Veteran's service-connected gunshot
wound. As his rationale for this conclusion, the examiner
simply observed that the evidence did not reflect either an
in-service spine injury or that the Veteran's service-
connected gunshot wound led to his low back condition.
In a September 2006 letter, the Veteran's private physician,
Dr. Sidney T. Griffin, reported that he has treated the
Veteran since 1978 and expresses an opinion that the
Veteran's service-connected left leg disability has caused
the Veteran to walk in such a way as to put strain upon his
low back and right leg. The private physician further opined
that as a result of this strain, the Veteran has developed
degenerative arthritic changes in his lumbar spine and right
hip, and is currently experiencing great difficulty and pain
with his lumbar spine and both legs.
The Board notes that the August 2006 VA examination report
acknowledges that the Veteran was required to use a walker to
ambulate due to an unbalanced gait. In discussing the
Veteran's unbalanced gait, the examination report simply
states that the Veteran's gait imbalance is likely due to the
Veteran's peripheral neuropathy. The examiner did not,
however, provide an opinion as to whether the Veteran's
service-connected left leg disability was productive of an
altered gait, and whether this altered gait caused the
Veteran's lumbar spine degenerative disk disease.
Under the circumstances, efforts should be made to obtain the
Veteran's complete treatment records from 1978 to date. The
Veteran should also be scheduled for a new VA examination,
and the examiner should be requested to provide an opinion as
to whether the Veteran's diagnosed degenerative disk disease
and right leg radiculopathy are related to an altered gait
caused by the Veteran's service-connected gunshot wound above
the left knee.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. A letter should be sent to the
Veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A, the need
for additional evidence regarding the
claims on appeal. This letter must
inform the Veteran of the information and
evidence that is necessary to
substantiate the claims and provide
notification of both the type of evidence
that VA will seek to obtain and the type
of evidence that is expected to be
furnished by the Veteran.
The Veteran should also be notified that,
in cases where service connection is
granted, both a disability evaluation and
an effective date for that evaluation
will be granted. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
The Veteran should also be provided a VA
21-4142 release and be requested to
provide full name and address information
for any additional private or VA
treatment providers who have rendered
treatment to the Veteran, including the
full and current address information for
Dr. Sidney T. Griffin. The Veteran
should also be requested to provide his
signature on each release.
2. After securing any necessary release
forms, with full address information, all
records of medical treatment which are
not currently associated with the
Veteran's claims file should be
requested, including the Veteran's
records from Dr. Griffin for any and all
treatment received since 1978. All
records obtained pursuant to this request
must be included in the claims file. If
the search for any such records has
negative results, documentation to that
effect should also be included in the
claims file.
3. Then, the Veteran should be afforded
a VA examination, with an appropriate
examiner, to determine the etiology of
his lumbar spine degenerative disk
disease and right leg radiculopathy, as
previously diagnosed at his prior August
2006 VA examination. The Veteran's
claims file must be made available to the
examiner prior to the examination, and
the examiner must review the entire
claims file in conjunction with the
examination.
All tests and studies deemed necessary by
the examiner should be performed. Based
on the review of the claims file and the
clinical findings of the examination, the
examiner is requested to offer opinions
as to whether the Veteran's service-
connected left leg disorder was
productive of altered gait, and if so,
whether it is at least as likely as not
(e.g., a 50 percent or greater
probability) that the diagnosed lumbar
spine degenerative disk disease and right
leg radiculopathy are etiologically
related to an altered gait caused by the
Veteran's disabilities arising out of his
service-connected left knee shrapnel
wound.
The examiner must provide a complete
and thorough rationale for the opinions
expressed, with references to all
relevant military treatment records,
lay statements, and post-service
private treatment records (including
the September 2006 private opinion of
Dr. Griffin), as "[i]t is the
factually accurate, fully articulated,
sound reasoning for the conclusion, not
the mere fact that the claims file was
reviewed, that contributes probative
value to a medical opinion." See
Nieves-Rodriguez v. Peake, 22 Vet. App.
295 (2008). The examiner's findings,
opinions, and conclusions must be
expressed in a typewritten report.
4. After completion of the above
development, the Veteran's claims of
entitlement to service connection for
degenerative disk disease of the lumbar
spine and service connection for a
right leg radiculopathy should be
readjudicated. If the determination
remains adverse to the Veteran, he and
his representative should be furnished
with a Supplemental Statement of the
Case and given an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).